Inadequate Petition For Grandparent Visitation Must Be Dismissed

By Barbara L. Drury of Fitch Law Partners LLP posted in Divorce & Family Law on Wednesday, May 23, 2018.

In a decision handed down on May 3, 2018, the Massachusetts Appeals Court reversed a Probate and Family Court Judge's ruling and held that the court must dismiss a petition for grandparent visitation "when the petition does not sufficiently allege why visitation is necessary to protect the child from significant harm." See Martinez v. Martinez-Cintron, No. 17-P-1056 (Mass. App. Ct. May 3, 2018).

The parties in Martinez were divorced in December 2016. At that time, the mother was granted sole legal and sole physical custody of the parties' infant child, and the father had supervised visitation. Shortly thereafter, father's mother (i.e., paternal grandmother) filed a petition with the Probate and Family Court seeking grandparent visitation. The petition alleged that it is in the best interest of the child that the paternal grandmother be granted visitation with the child. The Affidavit accompanying the paternal grandmother's petition provided only that she was child's grandmother, that she had only seen the child in the hospital after he was born, and that she wanted to be able to see the child on a weekly basis. In sum, nothing in the paternal grandmother's initial petition filed with the Court substantiated her claim that grandparent visitation is in the best interest of the child. (See Martinez).

The mother moved to dismiss paternal grandmother's petition for grandparent visitation. In denying mother's motion to dismiss, the trial court found that while an inadequate petition for grandparent visitation is subject to dismissal, dismissal is not required. Mother appealed.

Massachusetts General Laws chapter 119, section 39D provides statutory authority for grandparents, in certain circumstances, to pursue visitation with their minor grandchild(ren) by filing a petition with the appropriate division of the Probate and Family Court.

Massachusetts Courts have identified a heightened standard of pleading and ruled that petitions for grandparent visitation "should be detailed and verified or accompanied by a detailed and verified affidavit setting out the factual basis relied on by the plaintiffs to justify relief. A complaint not so verified, or one accompanied by an inadequate affidavit, would be subject to dismissal (or summary judgment) on motion by the defendant or defendants." See Blixt v. Blixt, 437 Mass. 649 (2002).

In its review, the Appeals Court relied upon the clear pleading requirements established by the Blixt Court, which requirements provide, in relevant part, that:

grandparents must rebut the presumption [that parents act in the best interest of their children] by establishing that denying visitation is contrary to the best interest of the child; and

to succeed, grandparents must allege and prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child's health, safety, or welfare.

See Martinez citing to Blixt at 658.

Finding that "the grandmother's affidavit in no way indicated that a failure to order visitation would subject the child to any harm, much less significant harm," the Martinez Court reversed the trial court's decision and dismissed the paternal grandmother's petition for grandparent visitation.